Delhi High Court

Thomas Mathai vs Mrs. Manju Grover on 9 November, 2011

Author: M. L. Mehta

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. MC No.3692/2011

                                              Date of Order: 09.11.2011

Thomas Mathai                                            ......Petitioner

                           Through:     Mr. Suresh C. Sati and Mr. Vijay
                                        C. Joshi, Advocate

                                  Versus

Mrs. Manju Grover                                        ...... Respondent

                           Through:     Nemo

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                 -        No
2.      To be referred to the Reporter or not ?      -        Yes
3.      Whether the judgment should be reported
        in the Digest ?                              -        Yes


M.L. MEHTA, J. (Oral)

Crl. MA 17607/2011 (exemption)

Exemption allowed subject to all just exceptions.

The application stands disposed of.

Crl. MC 36922011 & Crl.MA 17606/2011

1. This is a petition under Article 227 of the Constitution of India

read with Section 482 Cr.P.C against the order dated 25.8.2011 passed

by learned Additional Sessions Judge (ASJ) in Criminal Revision No.30 of

2011.

2. I have heard learned counsel for the petitioner and perused the

record including the impugned judgment.

3. The petitioner herein is a resident of 164, DDA Flats, Mount

Kailash, East of Kailash, New Delhi and the respondent herein is the

resident of Flat No.163, DDA Flats, Mount Kailash, East of Kailash, New

Delhi. The flat of the petitioner is on the first floor whereas that of

respondent on the ground floor. The respondent made a complaint to

the police whereupon police prepared a Kalandra under Section 133

Cr.P.C and referred the same to SDM, Defence Colony. The complaint

alleged that the water falling in her courtyard from the Air Conditioners

as installed by the petitioner herein was stagnating and creating

drainage and thereby causing nuisance. The learned SDM directed the

Tehsildar for inspection of the site who reported that there was seepage

in the walls of the bedroom of the respondent and he also noticed algae

(Kai) and some water accumulating on the roof causing seepage in the

walls of the respondent's house. The SDM also directed the concerned

Engineer of MCD to get the site inspected. As per report of MCD

Engineer, the ACs were installed in the front and rear side of the flat

bearing number 164 belonging to the petitioner herein and the water of

these ACs, installed by the petitioner in the rear side, falls on the

Chhaja and also on the floors of Flat No.163 belonging to the

respondent. The learned SDM in exercise of his powers under Section

133 Cr.P.C directed the petitioner herein to make necessary and

alternative arrangements for draining out the accumulated water

coming out from the ACs so that it does not stagnate on the roof or

floors of the respondent. The learned SDM also directed the respondent

to make necessary arrangements so that the water coming out from her

ACs and cooler also does not stagnate.

4. The petitioner being aggrieved against this order, filed a revision

petition before learned ASJ which came to be dismissed vide the

impugned order. The ground taken in the revision petition was that the

learned SDM was not competent to pass an order under Section 133

Cr.P.C since the allegations leveled against the petitioner do not fall

under any of the Clauses of Section 133 (1) Cr.P.C. The learned counsel

for the petitioner relied upon the case of Kachrulal Bhagirath

Agrawal and others v State of Maharashtra and others [2004

Crl.L.J. 14634] to contend that the proceedings under Section 133 Cr.P.C

cannot be invoked to settle a private dispute between the different

members of the public and that in case the respondent had any

grievance, the appropriate remedy was not under Section 133 Cr.P.C,

but a civil suit against the petitioner.

5. With the consent of the counsels for the parties, I have heard the

matter finally.

6. There is no dispute about the fact that the petitioner had

installed four ACs in his flat and the water from those ACs was falling

down and accumulating in and around the premises of the respondent.

In order to know the truth of the allegations made by the respondent,

the learned SDM got the inspection of the site done from the Tehsidar

as well as from the Engineer of the MCD. As noted above, they both

gave identical reports confirming the allegations that the water falling

from the ACs was accumulated on the roof and ground floor thereby

causing seepage in the walls of the flat of the respondent. The question

for consideration is as to whether this would fall within any of the

category of nuisance under Section 133(1). The relevant portion of

Section 133(1) is Clause (a) which reads as under:

"133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially powered in this behalf the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, consider --

(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public: or"

7. There is no dispute with regard to the proposition of law that the

proceedings under Section 133 Cr.P.C are not meant for the private

disputes between the different members of the public and they are in

fact intended to protect the public as a whole against the

inconvenience. In the aforesaid case of Kachrulal Bhagirath

Agrawal(supra), it was held as under:

"13. In Vasant Manga Nikumba v Baburao Bhikanna Naidu [MANU/SC/1346/1995] it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the

public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the senses that if the Magistrate fails to take re course immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when other order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisance and on the other hands applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between Section 133 and Section 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute."

8. In view of the inspection carried out by Tehsildar as well as MCD

Engineer, it is noted that the water was accumulating on the ground

floor and also on the roof and the courtyard of the respondent and was

also further causing seepage in the walls. Notice can be taken of the

fact that the flat where the petitioner and respondent are residing are

DDA Flats in a DDA Complex where large number of residents share

common space in the sense of community living. Accumulation of water

is bound to cause unhygienic conditions in and around that area. The

accumulation and stagnation of water is the source of waterborne

diseases. Likewise, seepage in the walls of the premises on the ground

floor is also, if not checked in time, may affect structural stability of the

entire block of flats. This would resultantly amount to public nuisance